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A recent Court of Appeal ruling “squashed flat” an attempt to argue local standards should not apply in a case for compensation brought by a holidaymaker injured abroad.
The judgment in late November in the case of Lougheed v On The Beach clarified the law on a number of counts according to Stephen Mason, senior partner at Travlaw.
The case concerned a Mrs Lougheed, who slipped and was injured on steps at a hotel in Lloret de Mar in August 2009. Mrs Lougheed won a claim for negligence against On The Beach in 2013. The travel firm successfully appealed.
Mason told the Travlaw event in London: “The case saw an attempt to argue that it is not local [safety] standards that should count [in a destination]. The Court of Appeal squashed that flat.”
It also closed a loophole suggested by another ruling that “local standards may not be the end of the matter” in deciding whether negligence has contributed to an injury. The Appeal Court agreed, “but only if both sides agree that these [local standards] are inadequate. It added that an Englishman does not travel abroad in a cocoon.”
The ruling provided clarification on a third issue, referring to the 1976 case of Ward v Tesco Stores which established, in Mason’s words, “that it was for the defendant [in cases of personal injury] to prove they were not negligent rather than for the claimant to prove they were”.
“In Lougheed, that was restricted to an area where accidents were deemed ‘likely to happen’ [and] in the area where Mrs Lougheed fell, there had never been an accident,” said Mason.
“The Court of Appeal said travellers should take out their own insurance rather than blame tour operators because all it does is put up the price of holidays. It was a remarkable decision,” he added.
Appeal Court: No breach of local standards
On The Beach appealed the judgment in the case brought by Mrs Lougheed, arguing the trial judge was wrong to find the hotelier in breach of local standards.
The Court of Appeal agreed. It noted: “It was an accident that could have occurred despite the use of proper care, as would have been the case if the stairs had become wet only very shortly before Mrs Lougheed negotiated them and before the wetness had come… to the attention of the hotel staff. There was no evidence here that slipping at this place was a known likely risk.”
Travelaw’s Stephen Mason noted this was “not the way in which courts have previously approached the question.”
Lord Justice Tomlinson of the Appeal Court also noted that findings of liability against tour operators “no doubt result in an increase in the cost of such holidays.”
On The Beach argued at the initial trial that it was not an organiser as defined by the Package Travel Regulations. But the court rejected that and On The Beach did not contest this on appeal.